The article provides a critical analysis of Union Cabinet’s decision about increasing the strength of the judiciary and suggests for the focus of the Supreme Court on its role as interpreter of the Constitution.
About Supreme Court of India:
- Inaugurated on January 28, 1950, the Supreme Court of India succeeded the Federal Court of India, which was established under the Government of India Act of 1935.
- The Constitution of India, under Articles 124 to 147 in Part V deals with the organisation, independence, jurisdiction, powers, procedures and so on of the Supreme Court.
- The Parliament, through legislation, is authorised for regulating the Supreme Court.
Organisation of Supreme Court:
- At present the Supreme Court has sanctioned strength of 31 judges including one Chief justice of India.
- However, Union Cabinet has approved a proposal to raise the strength of the Supreme Court from 31 to 34 (i.e. by 10%) including the Chief Justice of India (CJI).
- This is to be done by amending the Supreme Court (Number of Judges) Act, 1956, which was last amended in 2009.
- The amendment of 2009 had increased number of Supreme Court judges from 26 to 31 including Chief Justice of India.
- The strength of the Supreme Court, originally, was fixed at eight (One Chief Justice and seven other judges).
Conceptuals in short:
Structural Provisions Explained 1. Appointment of CJI and judges of the Supreme Court
- The CJI and other judges of the SC are appointed by the President.
- The CJI is appointed after consultation with the judges of the SC and HCs.
- The other judges are appointed with the consultation of the CJI and other judges of the SC.
- The consultation with CJI is obligatory in case of appointment of a judge other than the CJI.
2. Qualification of Judges
A person to be appointed as a judge of the SC should:
- He should be a citizen of India.
- He should have been: ○ A judge of a HC (or HCs in succession), for 5 years; or ○ An advocate of a HC (or HCs in succession) for 10 years; or ○ A distinguished jurist
3. Oath or Affirmation
A person appointed as a judge of the Supreme Court, has to make and subscribe to an oath or affirmation before the President or some other person appointed by him for this purpose. He/She swears to:
- To bear true faith and allegiance to the Constitution of India;
- To uphold the sovereignty and integrity of India;
- To duly and faithfully and to the best of his ability, knowledge and judgement to perform the duties of the Office without fear or favour, affection or ill-will; and
- to uphold the Constitution and the laws.
4. Tenure of Judges
The Constitution has neither prescribed a minimum age for appointment nor the tenure of a judge of the SC. However following provisions has been mentioned:
- Tenure - to the age of 65 years. Questions regarding his age are to be determined by the parliamentary legislations.
- Resignation - writing to the President.
- Removal - by the President on the recommendation of the Parliament.
5. Removal of Judges
- A judge of the Supreme Court can be removed from his Office with a removal order from the President, after an address by the Parliament has been presented in the same session for such removal.
- The address must be supported by a special majority of each House of the Parliament.
- The grounds of removal are two: a) proved misbehaviour; or b) incapacity.
- The Judges Enquiry Act (1968) provides for the process of impeachment which regulates the procedure of removal of a judge of the Supreme Court.
- A removal motion is to be signed by 100 members (in the LS) or 50 members (in the RS).
- The Speaker/Chairman of the House may admit the motion or refuse it.
- If admitted, the Speaker/Chairman is to constitute a 3 member committee to investigate the charges.
- The committee should consist of (a) the CJI or a judge of the Supreme Court, (b) a CJ of a HC, and (c) a distinguished jurist.
- If found guilty of misbehaviour or suffering from an incapacity, the House can take up the consideration of the motion of removal of the Judge.
- The President is addressed for the removal of the judge, after the motion is passed by each House of Parliament by special majority.
- The order of removal of Judge is passed by the President.
Recent Decision of increasing the number of Judges:
- A recent written request by the CJI Ranjan Gogoi to the Prime Minister, highlighting the problem of paucity of judges.
- CJI also reasoned the same for his inability of constituting enough Constitution Benches to decide important questions of law.
- Benefits of the move:
- Supreme Court of India is facing a large pendency of near about 59,331 cases as reported in July 2019.
- The decision will help in solving this perennial pendency issue.
- It will help in constituting more Constitutional Benches to decide important questions of law.
- It will also help in reducing time for the judicial procedures.
- Criticism on current situation:
- Though the decision for increasing the number of judges is a welcoming move, it may not be enough to liquidate the burdened pendency.
- There is a debatable burden on the Apex Court to correct every decision of every High Court.
- The optimal use of judicial resources is a point of revision.
- The mundane matters which does not involve any interpretation of Law or Constitution and takes valuable time of the Court is burdensome.
- Measures to solve the Issue:
- Preserve the primary role of the Supreme Court for an ultimate arbitration of constitutional questions and statutory interpretation.
- There should be a proper mechanism and compartmentalisation of questions involving a final decision on routine matters, civil cases involving nothing more than the interest of the parties, so that there will not be any detraction from the Court’s primary role.
- There should be a reasonable restraint on the duration of oral arguments in the Court.
- Disciplined adherence to a schedule of hearings is needed.
- Constitution of separate Courts which limits themselves in deciding questions of Constitutional importance as suggested in the 229th Report of the Law Commission.
The Law Commission Report also suggested for constituting one Constitutional Bench in Delhi and four ‘Cassation Benches’ for diﬀerent regions of the country, which will be the final appellate courts for routine litigation and increase access to justice to those living in farﬂung areas of the country and who may otherwise have to come to Delhi and spend more time and money in pursuing appeals.